The Closer

A Mediation Newsletter March 2013

When the Other Shoe Drops
by James Rainwater

As much as we would like to pre-plan for a mediation conference, occasionally a party comes to it with jolting news. This new demand, fact, or development has the potential to stall the conference before it really begins. Some clients enjoy the shock value of voicing something likely to be controversial to the other side. Some use it as a perceived tactical device. What can be done?

As a matter of procedure, it is best to separate the parties into individual caucus as soon as possible. While communication is key to mediation, in this situation, prolonging the exposure of one party's animosity toward another will likely cause more harm than any potential clarification.

While in caucus, the mediator should reassure the parties of the confidentiality of the caucus and adjust their focus onto the issues at hand. As difficult as this may be, it is vital that both counsel and mediator continue to return the discussion to the actual matter in dispute. In situations of extreme distress, the mediator will need the attorney's assistance and expertise in this process of deescalating the rhetoric and regaining the client's undivided attention.

Few of us enjoy harsh surprises. Yet, similarly, we do not want to jeopardize the entire conference over a few ill-planned remarks. The offended party should be calmed as quickly as possible, and the attorney may need to step up the conciliation tone and not feed into the client's outrage. One over-stressed person is more than ample in mediation. Likewise, the offending client's attorney now has an opportunity to downplay the severity of the new factor and emphasize the importance of working toward a middle ground.

As tensions are high, a reunited general session of the parties is not likely to be of much benefit. The mediator will need to shuttle repeatedly back and forth to each caucus. At this point, logic is the mediator's best tool in relieving any lingering anger. It is this approach where the shocked client is most readily amenable to settlement by understanding this simple truth: The mediated settlement agreement will prevent any additional bombshells from being dropped in the future. And that equals peace of mind.

Rainwater Law